Citation Nr: 1315800 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 08-25 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased disability evaluation for residuals of an injury to the left finger with subluxation of the proximal phalangeal joint (PIP), currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran had active service from July 1990 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Indianapolis, Indiana. The Veteran appeared at a hearing before a local hearing officer at the RO in March 2009. A transcript of that hearing is of record. This case was previously before the Board in September 2010 and was remanded for additional development. The RO has complied with the remand directives. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran is right hand dominant. 2. Residuals of the injury to the left little finger are manifested by complaints of pain, limitation of motion, decreased dexterity, and diminished strength of the left little finger. 3. The Veteran is in receipt a 10 percent non-schedular rating in excess of the maximum schedular rating available for limitation of motion and ankylosis of the left little finger. This finger has not been amputated, and the conditions are not productive of extremely unfavorable ankylosis or loss of use of the left hand. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a left little finger injury have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, (b), 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Codes 5003, 5156, 5227, 5230, 5307, 8512 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. Here, the duty to notify was satisfied by way of letters sent to the Veteran dated in January 2008, August 2007, October 2007, June 2008, February 2009, and March 2009 that fully addressed all notice elements. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained the service treatment records, VA outpatient treatment records and private medical records. Additionally, the Veteran was afforded VA examinations in November 2007, March 2008, March 2009, October 2010, and January 2012. These examinations were rendered by medical professionals and included a thorough examination and interview of the Veteran and review of the claims file. The examiners obtained an accurate history, listened to the Veteran's assertions, and obtained the information necessary for an evaluation in accordance with the rating criteria. Therefore, the Board finds that the examinations are adequate. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Claim The Veteran contends that he is entitled to an increased rating in excess of 10 percent for residuals of an injury to the left little finger with subluxation of the PIP joint. As the Veteran is already in receipt of a 10 percent rating for residuals of his injury, the maximum permitted under the amputation rule, along with an 20 percent rating for carpal tunnel syndrome of the left little finger and a 10 percent rating for arthritis of the left little finger, the Veteran is fully compensated for his left little finger injury, and entitlement to an increased rating is denied. Legal criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). A maximum zero percent rating is assigned under Diagnostic Code 5230 for any limitation of motion of the ring or little finger (whether on the major (dominant) or minor (non-dominant) hand). See 38 C.F.R. § 4.71a, Diagnostic Code 5230 (2012). The Board also will consider other potentially applicable Diagnostic Codes in the Rating Schedule. A maximum zero percent rating also is assigned under DC 5227 for favorable or unfavorable ankylosis of the ring or little finger (whether on the major (dominant) or minor (non-dominant) hand). See 38 C.F.R. § 4.71a, Diagnostic Code 5227 (2012). A Note to Diagnostic Code 5227 provides that evaluation as amputation should be considered and whether an additional evaluation is warranted for any resulting limitation of motion of other digits or interference with the overall function of the hand. Id. A compensable rating for a fifth finger disability requires amputation. See 38 C.F.R. § 4.71a, Diagnostic Code 5156. Under Diagnostic Code 5156, amputation of the little finger, a 10 percent evaluation is warranted for amputation of the little finger on the major or minor hand, without metacarpal resection, at the PIP joint or proximal thereto. 38 C.F.R. § 4.71a, Diagnostic Code 5156. It is noted that single finger amputation ratings are the only applicable ratings for amputations of whole or part of single fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5156, at Note. In order for ankylosis to be rated as amputation, the condition must manifest with extremely unfavorable ankylosis. See Note (3)(i) preceding 38 C.F.R. § 4.71a, Diagnostic Code 5216, unfavorable ankylosis of five digits of one hand. In other words, in order to be evaluated as amputation, there must be ankylosis of both the metacarpophalangeal and PIP joints either in extension or full flexion or with rotation or angulation of a bone. Id. Note (3)(ii) explains that if both the metacarpophalangeal and PIP joints of a digit were ankylosed, it should be evaluated as unfavorable ankylosis even if each joint was individually fixed in a favorable position. Note (3)(iii) indicates that if only the metacarpophalangeal or PIP joints were ankylosed and there was a gap of more than 2 inches (5.1 cm.) between the fingertips and the proximal transverse crease of the palm, with the fingers flexed to the extent possible, the condition should be evaluated as unfavorable ankylosis. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. For the purpose of rating disability from arthritis, multiple involvements of the metacarpal and carpal joints of the upper extremities are considered groups of minor joints ratable on a parity with major joints. 38 C.F.R. § 4.45 (2012). VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination, or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." If a Veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The evaluation, however, of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2012). The Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, since such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. See Esteban, citing Brady v. Brown, 4 Vet. App. 203 (1993). Under 38 C.F.R. §§ 4.40 and 4.45, a Veteran's pain, swelling, weakness, and excess fatigability must be considered when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court held in DeLuca that all complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran. Therefore, consistent with DeLuca and 38 C.F.R. § 4.59, the Veteran's complaints of pain have been considered in the Board's review of the diagnostic codes for limitation of motion. Factual background In a May 2004 rating decision, the RO granted the Veteran a nonschedular 10 percent rating for residuals or an injury to his left little finger with subluxation of the PIP joint, effective October 28, 2003. Although the maximum schedular criteria under Diagnostic Code 5230 only allowed for a noncompensable rating, the RO determined that under DeLuca, the Veteran's subjective accounts of pain and locking warranted a 10 percent rating. The Veteran filed a claim for an increased rating for the residuals of his left little finger injury in November 2006. In February 2007, he submitted a statement in which he contended that his finger injury prevented him from performing the full range of duties required in his employment as an airframe and power plant mechanic. He also contended that he has arthritis in his left hand. The Veteran underwent a VA examination in November 2007. The Veteran reported a decrease in hand strength and a decrease in dexterity in the left hand, with weekly flare-up of pain and an inability to use his finger during a flare-up. The examiner noted ankylosis of the left little finger in full extension at the PIP joint, but found that the ankylosis did not interfere with the other fingers or the overall hand motion. The Veteran was noted to have decreased dexterity of the left hand due to joint instability of the fifth PIP joint as well as an angulation deformity of 15 degrees at the PIP joint. Ranges of motion of the left little finger were 0 to 90 degrees of active flexion, with pain at 80 degrees. The Veteran had pain motion and after repetitive use. An x-ray showed mild posterior subluxation of the fifth middle phalanx on the fifth proximal phalanx. The examiner opined that there was no identified arthritis of the left fifth PIP. Rather, there is residual subluxation of the left fifth PIP which resulted in decreased dexterity of the left hand, causing pain and difficulty in performing his occupational tasks. In December 2007, the Veteran submitted a lay statement from a witness who corroborated the Veteran's contention that his finger disability interferes with his ability to perform the full range of occupational functions. The Veteran was afforded an additional VA examination in March 2008. The examiner diagnosed a mild swan neck deformity of the left small finger and mild ulnar subluxation of the PIP joint, though found no signs of degenerative joint disease. An x-ray showed improved subluxation of the fifth proximal interphalangeal joint, with no identified fractures. The soft tissue was unremarkable. A March 2008 statement from OrthoIndy, an Indiana orthopedic hospital, stated that "history of [left] small finger hyperextension injury in '91 or '92 and resultant swan neck deformity. Has continued use of finger. No present arthritis and minimal risk of future arthritis. There were no current restrictions, but the finger affects dexterity." The Veteran appeared before a decision review officer at a hearing in March 2009. The Veteran testified that his left little finger disability causes decreased dexterity in both hands and that he had to leave his employment as an aircraft mechanic because he was unable to perform the occupational duties. He stated that he was taking arthritis medication for his joint pain. The Veteran also indicated that the symptoms associated with his left little finger had increased in severity since the time of his last VA examination. The Veteran was afforded a VA examination in March 2009. The Veteran reported residuals of subluxation of the PIP joint of the left little finger, arthritis of the left hand, and carpal tunnel to the left little finger. He treats with an anti-inflammatory and wears a splint. A physical examination showed that repetitive motion caused further limitation of motion; however, the examiner did not report any ranges of motion in degrees. The examiner also noted that there was no ankylosis or deformity. The examination report shows a diagnosis of ulnar deviation, slight, left PIP little finger. The examiner concluded that diagnostic testing showed that the Veteran does not have arthritis or carpal tunnel syndrome of the left hand or wrist. The Veteran filed a statement from an unknown source in August 2010 stating that he was referred to a rheumatologist for left little finger pain and that he was diagnosed with arthritis, joint pain, and possible trigger finger of the left little finger. A VA examination was conducted in October 2010. The examiner noted a decrease in strength and dexterity of the left hand, including locking, weakness, and stiffness of the left little finger. A physical examination showed objective evidence of pain on active range of motion, but no limitation of motion of the left little finger. The examiner found diminished strength for flexion and extension at PIP joint of the left little finger against resistance. There was a slight lag of extension noted with a swan neck deformity. There was also noted trigger of the flexor tendon of the little finger. Pain and tenderness were noted over the tendon flexor sheath. The examiner noted the "probably due to (old). The trigger finger is a separate clinical entity." X-rays showed evidence of an ulnar drift, no significant joint narrowing or degenerated changes, no fracture or soft tissue changes, and the boned trabecular pattern appeared normal. The examiner diagnosed partial rupture of the extensor apparatus at PIP with swan neck deformity and trigger finger flexor tendon little finger teno-synovitis. He opined that there was no ankylosis and that the Veteran's original injury was misdiagnosed and not adequately splinted at the time of injury, which resulted in continued complaints of pain and swan neck deformity. Trigger finger was an aggravated problem, secondary to his original injury. An addendum to the VA examination was submitted in January 2012. The examiner clarified that the examination revealed no functional loss or loss of range of motion in the other fingers of the left hand and no significant pain was noted. The examiner noted that the deformity of ulnar deviation was a swan neck deformity. The examiner further stated that the Veteran's injury was only to his little finger and should not prevent his employment. Additionally, there were no complaints or findings on examination that would meet criteria for amputation. In a February 2012 rating decision, the RO granted additional ratings for the little finger. A 10 percent evaluation for arthritis of the left little finger was assigned, in contemplation of painful limited motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 20 percent evaluation for carpal tunnel of the left little finger was assigned for mild incomplete paralysis of the hand. See 38 C.F.R. § 4.71a, Diagnostic Code 8512. Finally, a noncompensable rating for muscle impairment of the left little finger was assigned in contemplation of slight impairment due to slight loss of strength, dexterity, and endurance, and objective ulnar deviation. See 38 C.F.R. § 4.71a, Diagnostic Code 5307. Analysis The evidence of record does not support the assignment of an increased rating for the left ring finger disability (trigger finger and residuals of an injury to the left finger with subluxation of the PIP joint). As an initial matter, a noncompensable (zero percent rating) is the maximum rating under Diagnostic Code 5230. A noncompensable rating is also the maximum rating under Diagnostic Code 5227 for ankylosis of the little finger. Thus, no increased schedular evaluation is warranted under these diagnostic codes. Despite the VA examination findings of no ankylosis and no amputation, the Veteran was assigned a non-schedular rating of 10 percent based on DeLuca criteria, based on pain and locking. As noted above, he was subsequently assigned additional ratings for arthritis, carpal tunnel syndrome, and muscular impairment of the left little finger. Because pain, locking, painful limited motion, mild incomplete paralysis of the hand, and slight impairment due to slight loss of strength, dexterity, and endurance, and objective ulnar deviation, are symptoms already compensated for by the evaluations for the left little finger, the Board finds that an increased evaluation based on additional functional loss is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2011); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). To do otherwise would create pyramiding. See 38 C.F.R. § 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259. Furthermore, the Board is cognizant of the amputation rule, which states that "the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed." 38 C.F.R. § 4.68 (2012). As stated above, amputation of the little finger at the proximal interphalangeal joint warrants a 10 percent rating pursuant to Diagnostic Code 5156. The record shows no evidence of amputation or symptoms that would warrant assigning a rating based on amputation. Therefore, a rating in excess of 10 percent is not warranted. The Board has also considered the Veteran's lay statements and sworn testimony regarding the severity of his disability. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating for his little finger injury; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. While the Board finds the Veteran competent to testify as to his symptoms and the Board finds his statements credible, the medical findings, which directly address the criteria under which the service-connected disabilities are evaluated are more probative than his assessment of the severity of his disabilities. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, the preponderance of the more probative medical evidence is against the claim, and the Veteran's claim for a higher rating is denied. Finally, the Board concludes that an increased extraschedular evaluation is not warranted. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). The Board notes in this regard that the Veteran currently is in receipt of excess of the maximum schedular rating available for his left little finger injury. See 38 C.F.R. § 4.71a, Diagnostic Code 5230 (2012). The Veteran is currently compensated with a 40 percent combined rating for the disabilities of his left little finger, in excess of the maximum rating provided for amputation of the left little finger. 38 C.F.R. § 4.68. Consideration of entitlement to an extraschedular evaluation must still be undertaken when a veteran is in receipt of the maximum combined schedular evaluation possible pursuant to the amputation rule. See Smallwood v. Brown, 10 Vet. App. 93 (1997). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the evaluation assigned for the service-connected left little finger fracture is not inadequate. First, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected left little finger fracture, as they address the Veteran's residuals, to include pain and locking; other symptoms are evaluated under the seprate evaluations awarded in 2012, and include limitation of motion, decreased dexterity, and diminished strength. Second, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization. The Veteran reported that his finger injury interfered with his ability to perform the job functions of an aircraft mechanic but subsequently acknowledged that he was working full-time as a maintenance repairman and in the prior 12-month period, had lost only two days from work due to pain in his finger. Finally, he did not indicate, and the medical evidence does not show, that he was hospitalized for his left little finger injury at any time during the pendency of this appeal. In light of the above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an increased rating in excess of 10 percent, including on an extraschedular basis, for residuals of an injury to the left little finger with subluxation of the PIP joint is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs